Apple looks to score a second ban on Samsung's Android smartphones, shortly

[Note: Invalidity proceeding is carried out in German court, so this ruling may be struck down.]

Well, we guess it was bound to happen sooner or later -- a court has actually bought Apple, Inc.'s (AAPL) claim to have "invented" the swipe unlock -- and in fact banned a competitor's product based on it.

Neonode Inc. (NEON) in 2005 launched a phone called the N1m, which had a virtually identical unlocking feature, albeit with a different graphic. You dragged the lock and your phone unlocked.

Apple lifted the unlock feature from NeoNode. [Source: FOSS Patents]

Unfortunately for Motorola -- the victim of Apple's successful swipe unlocking suit -- Judge Dr. Peter Guntz was apparently clueless of Apple's legal trolling and the fact that swipe unlock was introduced two years before Apple ever filed for its patent (EP1964022).

[UPDATE]
So a point of clarification. As pointed out by Theoz, the judge was not obligated, nor allowed to look at Neonode's prior art, given that Apple did not list it on the patent.

That said, a December FossPatents blog asserts that the Judge indeed knew about the Dutch judge's decision to strike down the infringement claim, on grounds of prior art.

In the Netherlands, invalidity can be ruled during an infringement trial. In Germany this proceeds via a separate track [source; PDF].

However, FossPatentsreports that German judges can narrow or widen the scope of the patent, and further states that Judge Dr. Peter Guntz chose a broader interpretation for Apple, versus a colleague in a nearly-indentical claim against Samsung:

Mannheim is reluctant to stay patent lawsuits on the grounds of suspected obviousness of a patent over prior art, which would be useful to Apple in this case, but last week, at a hearing on an Apple lawsuit against Samsung, Mannheim-based Judge Andreas Voß appeared inclined to interpret the patent more narrowly than his Munich-based colleague today. Motorola and Samsung have different slide-to-unlock implementations (in fact, each company has at least three implementations all by itself), so the infringement analysis isn't directly comparable, but I heard both courts' views on how to interpret the patent claims and Munich's take is more inclusive.

Further, as the FossPatents blog points out, Judge Dr. Guntz could have ordered a stay on the patent trial, until the invalidity trial concluded. While German courts are typically wary of doing this, given the Netherlands ruling and the clear-cut case for prior art, it would seem that this would be fair -- albeit unusual -- path to take.

But Judge Dr. Guntz did not do this.

Again, it's important to get the story precisely right, but in this case the accurate picture is actually worse for Judge Dr. Guntz than our initial impression that he simply did not know about the prior art.

The Judge knew about the prior art, yet purposefully chose not to apply either of the methods at his disposal -- either narrowing Apple's claim (not based on the prior art, mind you, but on the interpretation of the patent itself, as his colleague did) or staying the trial until the invalidity proceedings wrapped up.

In purposefully ruling against Motorola on a violation he knew to be likely invalid, it seems far more unproper and unjust than if his decision had been based on simple innocent ignorance.

[/UPDATE]

And apparently he also didn't realize how silly it was to claim ownership of a gesture control that would take minutes for an experienced programmer to make. NeoNode never bothered to patents its invention or sue anybody -- after all, it seemed so obvious.

[UPDATE 3]

Neonode actually does own a patent on swipe-to-unlock, it just hasn't sued anybody -- yet. I missed this during my initial search of Google Patents and the USPTO website, but a kind reader sent it my way.

[/UPDATE 3]

For now two Motorola handsets are permanently banned in Germany. And Apple is also suing Samsung Electronics Comp., Ltd. (KS:005930), hoping to ban their phones for the same feature.

[UPDATE 2]

It appears a fix may prevent an injunction from taking hold. According to CIO Today, Motorola has a fix ready to roll out, which will replace the infringing feature.

This should buy it the time it needs to invalidate/narrowed Apple's slide to unlock work, which will almost certainly be invalidated or narrowed, assuming the German court gives Motorola and the defendant in the other unlocking lawsuit, Samsung, a fair trial.

[/UPDATE 2]

Motorola -- whose acquisition by Google Inc. (GOOG) was made official this week by the European Union -- is likely to appeal the Munich Regional Court's decision to the Düsseldorf Higher Regional Court. If it loses -- and if Samsung looses -- Apple could be granted a local monopoly on smartphones, or at least force Android to drop a ubiquitous key feature most customers take for granted today.

The only good news for Motorola is that it's already scored a ban on the iCloud, and a ban on the iPad/iPhone that is set to resume soon too, after a brief stay. The German court system banned Apple's products after Apple refused to pay Motorola for its 3G patents, claiming they were invalid.

What do you think? Do you think the German justice made the right call?

quote: So Motorola first abused it's FRAND commitment by being discriminatory and then asked a ludicrous license amount for the item. This will be struck down by the courts and bodies like the EU but it will tarnish Motorola's (and Google's) reputation.

What evidence do you have that the particular licensing fee was ludicrous?

Basically Apple wants to try to milk the supply chain by buying its way into certain discounted licenses (by exploiting licensing relationships between firms), while refusing to license its overly broad design and technology. That's plain anticompetitive and abusive.

"Fair" is a very ambiguous term. Clearly Qualcomm was a strategic CPU supplier of Motorola, so it might offer the licensing to Qualcomm at a lower rate. If HTC got discounted FRAND CPUs, is that horrible for Motorola? No, it supports the cause.

"Non-discriminatory" does not mean that a company can not license its FRAND IP at a discounted rate (less than the industry standard) or for free to key allies. It also does not mean that it HAS to license to everyone for the same rate. It merely means it cannot seek licensing ABOVE the industry standard, or deny licensing.

Bor Apple -- the top smartphone maker in the world -- it likely does not want to apply the same discount, but rather wants to develop a direct (but fair) licensing relationship, so it can fully profit off its ingenuity.

There is clear evidence that Qualcomm thought it had secured a FRAND license framework for the chip in question which meant that it's customer did not have to pay any further license fees directly to Motorola. That was how the sale of the item in question had been conducted for some time.

Motorola specifically and explicitly withdrew that agreement just in relation to Apple. Which is discriminatory. And thus breaches FRAND.

Motorola specifically and explicitly then asked for a very high license just from Apple. There is no evidence that anyone else pays anything like 2.5% of the value of the finished goods that contain this chip (which is what Motorola is demanding of Apple) as license fees to Motorola. Which is unfair, unreasonable, and discriminatory. And thus breaches FRAND.

Apple will win this one and Motorola will have to probably pay damages to Apple (and possibly Qualcomm).

I am very surprised that Motorola (and Google) decided to use such a stupid and ultimately weak legal tactic as this.

I am not surprised that so many people around here try to defend their actions as being anti-Apple seems to trump all other considerations for some.

/Tony Swash... But, Apple is right, because they are Apple and Apple says so. If Apple says so it must be true. I know this because Apple told me. Apple is right in all things they do no matter what. Just check Apple.com for more valuable info.

Few cock-ups here. First - Microsoft charges a fixed cost, not a percentage. Secondly, patent s (plural), not just one patent. And most crucially, THEY ARE NOT FRAND PATENTS, SO DO NOT HAVE TO BE FAIR OR REASONABLE.

Seriously dumb (as ever).

quote: Also, how is it discriminatory if Motorola offered to license directly to Apple?

Because they tried to remove the cascading license, which was a part of what Apple was purchasing when dealing with Qualcomm, but didn't do the same to all the other manufacturers? How can you possibly not get that...

quote: Either way, if Apple pays, it gets licensed -- no discrimination.

1 - The other companies have an implied license through Qualcomm. Not paying, licensed = discrimination.2 - Apple has offered to pay FRAND rates, going back and forward.3 - Motorola has demanded ABOVE-FRAND rates, going back, and is trying to refuse FRAND licensing going forward at FRAND rates based on this ridiculous claim.

quote: Basically Apple wants to try to milk the supply chain by buying its way into certain discounted licenses (by exploiting licensing relationships between firms), while refusing to license its overly broad design and technology. That's plain anticompetitive and abusive.

Absolute nonsense. Every other manufacturer did exactly the same thing. Only Apple was skanked into having to re-license this.

quote: "Fair" is a very ambiguous term. Clearly Qualcomm was a strategic CPU supplier of Motorola, so it might offer the licensing to Qualcomm at a lower rate. If HTC got discounted FRAND CPUs, is that horrible for Motorola? No, it supports the cause.

Fair and NON DISCRIMINATORY are not ambiguous at all. It means you can't show any favouritism, simple as. That's the whole point of FRAND. If you could show favouritism how could you ever say that was non-discriminatory? (or fair, by the way).

quote: "Non-discriminatory" does not mean that a company can not license its FRAND IP at a discounted rate (less than the industry standard) or for free to key allies. It also does not mean that it HAS to license to everyone for the same rate. It merely means it cannot seek licensing ABOVE the industry standard, or deny licensing.

Riiiiight Jason. So what's actually happening is that Motorola is costing themselves money they could easily and happily gain by charging LOWER THAN FRAND RATES for their FRAND technology to their competitors. Because they are a big charity like that and they are very very nice boys. And they are not trying to completely rip Apple offer by openly admitting that they are asking for ABOVE FRAND rates, they are actually being fair and nice albeit having forgotten the fact that they are a charity. Honestly you get more and more absurd. And actually, licensing FRAND patents at below FRAND rates to specific allies could VERY WELL be seen as a breach of the FRAND terms and anti-competitive.

quote: Bor Apple -- the top smartphone maker in the world -- it likely does not want to apply the same discount, but rather wants to develop a direct (but fair) licensing relationship, so it can fully profit off its ingenuity.

If this were true:

a) They wouldn't have OPENLY admitted to wanting ABOVE FRAND RATES.b) They wouldn't have sought a ban on products, an anti-competitive act which isn't required to achieve the financial outcome.c) They wouldn't be refusing to license at FRAND rates going forward, and would have accepted Apples offer of FULL FRAND rates going backwards and forwards.

Of course, all of the above didn't happen and you're talking uninformed drivel again.